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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

SONTAY T. SMOTHERMAN, 

 

 Petitioner, Civ. No. 2:14-cv-972 

 Crim. No. 2:12-cr-055(3) 

 v. Judge Frost 

 Magistrate Judge King 

UNITED STATES OF AMERICA, 

 Respondent. 

ORDER and 

REPORT AND RECOMMENDATION 

 Petitioner, a federal prisoner, has filed a motion to vacate, set aside or correct sentence 

pursuant to 28 U.S.C. § 2255. This matter is before the Court on the Motion to Vacate, ECF 279; 

Respondent’s Answer in Opposition, ECF 272; Petitioner’s Traverse, ECF 273; Petitioner’s 

Motion for Summary Judgment, ECF 276; Petitioner’s Motion for Relief from Judgment, ECF 

280; and Petitioner’s Motion for Discovery, ECF 281. For the reasons that follow, Petitioner’s 

Motion for Discovery, ECF 281, is DENIED and it is RECOMMENDED that Petitioner’s 

Motion for Summary Judgment and Motion for Relief from Judgment, ECF 276, 280, be 

DENIED and that the Motion to Vacate, ECF 270, be DISMISSED. 

Facts and Procedural History 

This case arises in connection with Petitioner’s convictions, following a jury trial, for 

possession of heroin with intent to distribute, possession of a firearm in furtherance of a drug 

trafficking crime, and conspiracy to distribute more than 100 grams of heroin. The United States 

Court of Appeals for the Sixth Circuit summarized the facts and procedural history of the case as 

follows: 

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Smotherman's charges stem from the Columbus Police 

Department's investigation of a suspected narcotics-trafficking 

residence at 401 Taylor Avenue in fall 2011. After observing 

known heroin users frequent the residence, police obtained a 

warrant and searched the house. They found Smotherman in the 

garage near a pile of cash and a box containing two handguns, drug 

paraphernalia in a bedroom, 800 individual packets of heroin 

(approximately 25 grams) in the kitchen microwave, and more than 

$6,000 in a car behind the house. A second superseding indictment 

charged Smotherman with possessing heroin with the intent to 

distribute in violation of 21 U.S.C. § 841; possessing a firearm in 

furtherance of a drug-trafficking crime in violation of 18 U.S.C. § 

924(c); and conspiracy to distribute 100 grams or more of heroin in 

violation of 21 U.S.C. § 846. 

Prior to trial, Smotherman unsuccessfully moved to suppress 

evidence obtained from a different drug house, 823 West Rich 

Street, and to compel the disclosure of a confidential informant. At 

the close of evidence, the district court denied Smotherman's 

motion for a judgment of acquittal, and the jury convicted 

Smotherman of the above charges. At sentencing, Smotherman 

renewed his objection to the drugs found at 823 West Rich Street, 

but the district court included them as part of the larger drugtrafficking conspiracy, sentencing Smotherman to consecutive 60–

month terms for the firearm and drug-possession charges - both 

statutory minimums - for a combined sentence of 120 months. See 

18 U.S.C. § 924(c)(1)(A)(i); 21 U.S.C. § 841(b)(1)(B)(i). 

United States v. Smotherman, 564 Fed.Appx. 209, 211 (6th Cir. 2014); see Exhibit A to Response

in Opposition, ECF 272-1, PageID#1553-55. On April 24, 2014, the United States Court of 

Appeals for the Sixth Circuit affirmed this Court’s Judgment. Id. On June 23, 2014, the United 

States Supreme Court denied Petitioner’s petition for a writ of certiorari. Smotherman v. United 

States, 134 S.Ct. 2863 (2014). 

 On July 23, 2014, Petitioner filed the pro se Motion to Vacate, alleging that the Court 

erred when it attributed to him drugs recovered from a West Rich Street address, thus resulting in 

an improper calculation of the recommended sentence under the United States Sentencing 

Guidelines (claim one); that the government improperly failed to disclose the identity of the 

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confidential informant (claim two); that the Court improperly admitted evidence regarding his 

involvement in a conspiracy to distribute heroin (claim three); and that the Court improperly 

denied his motion for judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal 

Procedure because the evidence is constitutionally insufficient to sustain his convictions (claims 

four and five). Respondent contends that Petitioner’s claims are not properly addressed in these 

proceedings because they were either addressed by the Sixth Circuit on appeal or have been 

waived. 

Motion for Discovery 

Petitioner has filed a Motion for Discovery in which he requests the production of various 

documents and material intended for use or used by the government at trial, or otherwise in the 

possession of the Respondent. A habeas corpus petitioner has no absolute right to discovery. 

Bracy v. Gramley, 520 U.S. 899 (1997); Stanford v. Parker, 266 F.3d 442, 460 (6th Cir. 2001). 

Under the provisions of Rule 6(a) of the Rules Governing Section 2255 Proceedings in the 

United States District Courts, a petitioner is “entitled to invoke the processes of discovery 

available under the Federal Rules of Civil Procedure if, and to the extent that, the judge in the 

exercise of his discretion and for good cause grants leave to do so, but not otherwise.” 

Discovery is warranted only where “specific allegations before the court show reason to believe 

that the petitioner may, if the facts are fully developed, be able to demonstrate that he is . . . 

entitled to relief [.]” Harris v. Nelson, 394 U.S. 286, 299 (1969); Williams v. Bagley, 380 F.3d 

932, 974 (6th Cir. 2004). When a petitioner fails to make “a fact specific showing of good cause 

under Rule 6,” a court will deny the discovery requests as a mere fishing expedition. Stanford v. 

Parker; Williams v. Bagley. Rule 7 of the Rules Governing Section 2254 Cases further limits 

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discovery and allows only the “addition of records which are relevant to the merits of a habeas 

corpus petition.” 

 As noted supra, Respondent argues that none of Petitioner’s claims may properly be 

addressed in these habeas corpus proceedings because they were either addressed by the Sixth 

Circuit on appeal or have been waived. The documents requested by Petitioner will not assist 

him in the resolution of these issues. Petitioner’s Motion for Discovery is therefore without 

merit. 

Claims Addressed by United States Court of Appeals 

Respondent argues that Petitioner’s claims were resolved on appeal by the Sixth Circuit 

and cannot be revisited in these proceedings. This Court agrees. 

 Three of Petitioner’s claims relate, at least in part, to evidence of drug trafficking activity 

at 823 West Rich Street. Noting that he was found at 401 Taylor Avenue, Petitioner contends 

that none of the evidence found at the West Rich Street address was properly considered in the 

case against him. Specifically, Petitioner contends in claim one that the Court improperly 

attributed to him drugs recovered from the West Rich Street address, thus resulting in an 

improper calculation of the recommended sentence under the United States Sentencing 

Guidelines. In claim three, Petitioner contends that the Court improperly admitted evidence 

relating to or seized from the West Rich Street address. In claim five, Petitioner contends that the 

Court should have granted his motion for judgment of acquittal at the close of the government’s 

case. The United States Court of Appeals for the Sixth Circuit addressed the issues presented by 

these claims as follows: 

We review Smotherman's sufficiency-of-the-evidence challenges 

under the Jackson standard, affirming so long as the evidence, 

viewed in the light most favorable to the government, permits a 

rational juror to find the crime's essential elements beyond a 

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reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); 

United States v. Ramirez, 635 F.3d 249, 255 (6th Cir. 2011). The 

evidence here supported each conviction. 

Beginning with the drug-trafficking convictions, Smotherman 

claims that the government proved neither his participation in a 

heroin-distribution conspiracy nor his possession of heroin. He 

specifically denies having anything to do with 823 West Rich 

Street. But coconspirator testimony established the following key 

facts: (1) Smotherman and his cousin agreed to sell heroin at 401 

Taylor Avenue; (2) Waymon Price supplied the heroin from his 

stash house at 823 West Rich Street; (3) Price's driver, Bryan 

Johnson, made frequent visits—almost “every other day”—to 401 

Taylor Avenue for heroin deliveries and cash pickups involving 

Smotherman; and (4) Johnson observed Smotherman selling heroin 

to customers. (R. 259, Trial Tr. (Johnson) at 74–75, 104–11, 122–

23; id. (Arnett Smotherman) at 164–71.) In all, Johnson made 15 to 

25 trips to 401 Taylor Avenue between September and October 

2011, supplying an estimated 100–200 grams of heroin. ( See id. 

(Johnson) at 105–111, 123.) The evidence thus demonstrates more 

than a mere buyer-seller relationship; multiple parties agreed to 

distribute heroin out of 401 Taylor Avenue, and Smotherman 

actively participated in the conspiracy. See United States v. Deitz, 

577 F.3d 672, 680–81 (6th Cir. 2009) (explaining that frequent, 

similar drug transactions can establish a larger drug-distribution 

conspiracy). It matters not whether Smotherman knew about the 

823 West Rich Street supply chain. United States v. Salgado, 250 

F.3d 438, 447 (6th Cir.2001) (“While an agreement must be shown 

beyond a reasonable doubt, the connection between the defendant 

and the conspiracy need only be slight, and the government is only 

required to prove that the defendant was a party to the general 

conspiratorial agreement.”). 

The same evidence supports the possession count. Though police 

found three other people in the house, coconspirators' accounts of 

Smotherman's frequent drug transactions at 401 Taylor Avenue 

sufficed to establish both constructive possession of the heroin 

found in the kitchen microwave and intent to distribute. See United 

States v. Newsom, 452 F.3d 593, 608–09 (6th Cir.2006) 

(explaining that “constructive possession . . . exists when a person . 

. . knowingly has the power and the intention at a given time to 

exercise dominion and control over an object,” and “may be 

proven by either direct or circumstantial evidence”). The fact that 

Smotherman's coconspirators pleaded guilty does not undermine 

the legal significance of their testimony, especially in light of the 

corroborating physical evidence. See, e.g., United States v. Cruz,

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270 Fed.Appx. 393, 395–96 (6th Cir. 2008) (per curiam) 

(explaining that even uncorroborated accomplice testimony can 

support a conviction). 

. . . 

B. Admissibility of 823 West Rich Street Evidence 

Smotherman next faults the district court for allowing evidence of 

the heroin distribution occurring at 823 West Rich Street, 

reiterating that he had nothing to do with that location. We find no 

abuse of discretion. See United States v. Lopez–Medina, 461 F.3d 

724, 741 (6th Cir. 2006). 

Again, the government needed to establish the existence of a drugtrafficking conspiracy, not just a buyer-seller relationship. It did 

this by presenting evidence of a distribution agreement between 

the heroin supplier at 823 West Rich Street and the downstream 

sellers at 401 Taylor Avenue—as noted above, Johnson's frequent 

heroin and cash runs, delivering heroin from Price to Smotherman 

and returning with money. Moreover, Smotherman's cousin, with 

whom he agreed to sell drugs, packaged heroin at both locations. 

(R. 259, Trial Tr. (Arnett Smotherman) at 171–73.) Thus, whether 

or not Smotherman knew of the activities at 823 West Rich Street, 

the evidence concerning the stash house was relevant to - and 

highly probative of - the conspiracy charge. See Fed.R.Evid. 

401(a) (“Evidence is relevant if . . . it has any tendency to make a 

fact more or less probable than it would be without the evidence.”); 

Dortch v. Fowler, 588 F.3d 396, 400 (6th Cir.2009) (noting Rule 

401's “extremely liberal” relevance standard); see also United

States v. Schultz, 855 F.2d 1217, 1221 (6th Cir. 1988) 

(acknowledging the chain-like design of many drug conspiracies, 

and concluding that “[i]t is not necessary to prove that the 

defendant was aware of each act of his coconspirators in 

furtherance of the conspiracy”). Given his frequent dealings with 

the residents of 823 West Rich Street, we discern no risk of unfair 

prejudice to Smotherman from the admission of this evidence, let 

alone one substantially outweighing its probative value. See

Fed.R.Evid. 403. 

. . . 

D. Sentencing: Drug–Quantity Determination 

Last, Smotherman assigns clear error to the district court's drugquantity calculation at sentencing, asserting that it improperly 

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included drugs from the stash house in determining that his crimes 

involved more than 100 grams of heroin. The jury's verdict 

forecloses this argument, in that it found Smotherman guilty of 

participating in a drug-trafficking conspiracy involving 100 grams 

or more of heroin. Johnson's estimated total deliveries to 401 

Taylor Avenue supported this conclusion. The district court 

therefore “c[ould not] ignore the jury's findings as to drug 

quantity.” United States v. Ricketts, 317 F.3d 540, 545 (6th 

Cir.2003). Because the jury's finding necessitated the 60–month 

mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(B)(i), 

we reject Smotherman's drug-quantity argument. See United

States. v. Garner, 491 F.3d 532, 536–37 (6th Cir. 2007) 

(concluding that the jury's drug-quantity determination, and not the 

district court's calculation, triggered the statutory minimum 

sentence). 

United States v. Smotherman, 564 Fed.Appx. at 211-214. 

 In claim four, Petitioner contends that the evidence was constitutionally insufficient to 

prove his possession of a firearm in furtherance of a drug trafficking crime. The Court of 

Appeals addressed this issue on direct appeal: 

Turning to the firearm conviction, Smotherman emphasizes the 

lack of physical evidence directly linking him to the boxed 

handguns found at 401 Taylor Avenue, as well as the fact that he 

could legally possess firearms prior to his conviction. But he 

concedes that Johnson testified that he carried or wore a gun on his 

person during drug transactions. (R. 259, Trial Tr. (Johnson) at 

106–10.) And the government points to other coconspirator 

testimony corroborating this fact. (Id.) (Arnett Smotherman) at 

176.) Ample evidence thus supported the jury's conclusion that he 

used a firearm to “promote or facilitate” a drug-trafficking crime, 

as necessary for conviction under 18 U.S.C. § 924(c). See United 

States v. Mackey, 265 F.3d 457, 461 (6th Cir.2001). 

Id. 

 In claim two, Petitioner contends that he was improperly denied the disclosure of the 

identity of the confidential informant involved in the case against him. The Court of Appeals 

addressed this claim as follows: 

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C. Undisclosed Confidential Informant 

Next, Smotherman claims that the district court abused its 

discretion in denying disclosure of a confidential informant he 

believes “provide[d] the basis for the case against [him].” Yet, 

other than his speculation that the informant participated in drug 

transactions and “may disclose entrapment or other issues,” 

Smotherman fails to demonstrate the importance of the 

confidential informant to either the government's trial strategy or 

his defense. 

Courts will order the disclosure of a confidential informant only 

upon a showing that it “is essential to a fair trial.” United States v. 

Moore, 954 F.2d 379, 381 (6th Cir. 1992). Because “[m]ere 

conjecture or supposition” will not do, United States v. Sharp, 778 

F.2d 1182, 1187 (6th Cir. 1985) (quoting United States v. 

Gonzales, 606 F.2d 70, 75 (5th Cir. 1979)), the district court 

properly denied Smotherman's motion. 

Id. 

 It therefore appears that the Sixth Circuit addressed, and rejected, the merits of all the 

claims presented in the Motion to Vacate. District courts will not ordinarily consider in 

proceedings under § 2255 claims previously considered by the United States Court of Appeals. 

See DuPont v. United States, 76 F.3d 108, 110 (6th Cir. 1996) (“Absent exceptional 

circumstances, not present in these proceedings,”[a] § 2255 motion may not be used to relitigate 

an issue that was raised on [direct] appeal.”) No exceptional circumstances justify 

reconsideration by this Court of Petitioner’s claims in these proceedings. 

 In light of the foregoing, Petitioner’s Motion for Summary Judgment and Motion for 

Relief from Judgment are without merit. 

WHEREUPON Petitioner’s Motion for Discovery, ECF 281, is DENIED. It is 

RECOMMENDED that Petitioner’s Motion for Summary Judgment, ECF 276, and Motion for 

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Relief from Judgment, ECF 280, be DENIED, and that the Motion to Vacate, ECF 270, and this 

action be DISMISSED. 

Procedure on Objections 

 If any party objects to this Report and Recommendation, that party may, within fourteen 

days of the date of this Report, file and serve on all parties written objections to those specific 

proposed findings or recommendations to which objection is made, together with supporting 

authority for the objection(s). A judge of this Court shall make a de novo determination of those 

portions of the report or specified proposed findings or recommendations to which objection is 

made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in 

part, the findings or recommendations made herein, may receive further evidence or may 

recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1). 

The parties are specifically advised that failure to object to the Report and 

Recommendation will result in a waiver of the right to have the district judge review the Report 

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of 

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140, 

106 S.Ct. 466, 88 L.Ed.2d 435 (1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981). 

 s/ Norah McCann King 

 Norah McCann King 

United States Magistrate Judge 

April 24, 2015 

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